Judge orders Milwaukee Municipal Court to comply with recording requirements

Note: this story was updated on Dec. 10 to include quotes from the petitioner's attorney.

By Margo Kirchner

Today, a Milwaukee County Circuit Court judge ordered the Milwaukee Municipal Court and its judges to comply with statutory requirements mandating electronic recordings of all hearings on motions to reopen or a defendant’s inability to pay a judgment due to poverty.

Borowski

Judge David Borowski found that Milwaukee Municipal Court and its judges “have violated and very likely will continue to act in violation of their plain duties” regarding electronic recordings.
 
He ordered Milwaukee Municipal Court within 90 days to “fully implement policies and procedures whereby an electronic recording shall be made of EVERY hearing in which (1) a decision is made as to a motion to reopen a case (regardless of whether said motion is made orally or in writing, regardless of the label or category assigned to said hearing, and regardless of the ultimate result of the hearing) and (2) a determination is made as to the defendant’s ability to pay a judgment due to poverty (regardless of the ultimate result of the hearing).”
 
Borowski reserved the right to hold hearings every three to six months to monitor the municipal court’s compliance with the order.
 
Borowski granted summary judgment and a request for a supervisory writ in favor of Lucianna Armour, a municipal court defendant who receives public benefits and is unable to pay the court’s judgments against her.

Armour argued that Milwaukee Municipal Court regularly fails to follow proper procedures to record hearings, which could impede her rights on appeal. Armour is represented by Susan Lund and Sheila Sullivan of Legal Action of Wisconsin.
 
State law requires that “(e)very proceeding” municipal courts in which testimony is taken under oath or affirmation, hearing on a motion to reopen, and hearing regarding whether a defendant is unable to pay a judgment because of poverty “shall be recorded by electronic means for purposes of appeal.”
 
Recording is important because appeals of decisions on motions to reopen and inability to pay involve only a review of the municipal court’s record. Without a recording, there is little for the appellate court to review.

"Properly recording hearings ensures that municipal court judges are transparent about and accountable for the basis of their decisions," Lund told Wisconsin Justice Initiative following Borowski's decision.
 
Milwaukee Municipal Court argued that motions to reopen that are granted do not require a recording, because the defendant would have no appealable issue anyway.
 
Borowski rejected that argument, writing that the “statute’s use of the word ‘every’ clearly operates to encompass all hearings and proceedings enumerated in the statue, depriving the municipal court of any discretion in determining which hearings on motions to reopen are required to be electronically recorded.”
 
Borowski said the municipal court’s argument defied logic. “(T)he municipal court judge cannot and should not know before the hearing is held whether it will grant or deny a motion to reopen.” Further, either party could appeal a decision on the motion to reopen, and the recording must be made regardless of who wins the motion, he said.
 
Armour’s evidence showed that during a three-month period in 2022, Milwaukee Municipal Court failed to record 42% of hearings on motions to reopen. Borowski found the municipal court’s “many excuses for not recording its hearings to be lacking” and that the municipal court judges “certainly do not get to decide which outcomes render a hearing on a motion to reopen worthy of being recorded.”
 
Regarding the recording of poverty determinations, Borowski rejected the municipal court’s argument that the statutory recording requirement is limited to hearings that address solely a defendant’s ability to pay, not hearings in which ability to pay is part of a broader hearing or a defendant is automatically found unable to pay because of representation by a legal services organization, for instance.
 
The statute “imposes a plain legal duty on Respondents to record every hearing in which a determination as to the defendant’s inability to pay the judgment due to poverty is made, regardless of whether such determination is the primary focus of the hearing,” Borowski wrote. Any determination in open court as to a defendant’s inability to pay is appealable and requires a recording, he said.
 
Hearings that may not be called poverty hearings but discuss a defendant’s ability to pay are included in the recording requirement, Borowski said. Municipal court defendants who are put onto installment plans or whose judgments are stayed or extended “very likely engaged in some sort of discussion with the judge as to their ability to pay. One cannot know for sure, however, because Respondents decided not to make the proper electronic recordings.”
 
Again, Borowski rejected the municipal court’s argument that hearings with outcomes favorable to a defendant need not be recorded: “Any argument that Respondents make which is based on the result of the hearing is necessarily illogical and ignores the fact that there is a plain duty to record.”

Lund told WJI that discovery in the case revealed that despite the mandate for court recording of every hearing regarding ability to pay, "Milwaukee Municipal Court's three full-time judges recorded no more than 17 such hearings in the 43 months" before Armour filed her petition. "Milwaukee Municipal Court imposed over 6,500 warrants or driver's license suspensions as sanctions for nonpayment for every hearing it recorded on whether the defendant was unable to pay the judgment due to poverty," Lund said.

"Judge Borowski’s decision confirms that Milwaukee Municipal Court’s current recording policies must be revised to comply with the law. This decision is especially important for municipal court defendants who seek to avoid warrants and driver's license suspensions caused by poverty—and the loss of jobs, housing, and income that often accompany those sanctions," Lund said.

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